Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016 Page 1 of 17

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

David M. Payne

Marion, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

William D. Funderburgh III,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 21, 2016

Court of Appeals Case No.

27A05-1604-CR-867

Appeal from the Grant Superior 

Court

The Honorable Dana J. 

Kenworthy, Judge

Trial Court Cause No.

27D02-1405-FA-10

Pyle, Judge.
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Statement of the Case

[1] William D. Funderburgh III (“Funderburgh”) appeals his sentence imposed 

following his guilty plea to Class A felony child molesting.

1 Funderburgh 

appeals his sentence, arguing that the trial court erred in its consideration of 

aggravators and mitigators and that his fifty-year sentence is inappropriate. 

Concluding that the trial court did not abuse its discretion when sentencing 

Funderburgh and that Funderburgh has failed to show that his sentence is 

inappropriate, we affirm his sentence.

[2] We affirm.

Issues

2

1. Whether the trial court abused its discretion when sentencing 

Funderburgh.

2. Whether Funderburgh’s sentence is inappropriate pursuant to 

Indiana Appellate Rule 7(B).

 

1

IND. CODE § 35-42-4-3(a)(1) (2006). We note that under the current version of the child molesting statute, 

which took effect in 2014, Class A felony child molesting is now a Level 1 felony. Because Funderburgh 

committed his offense in 2005-2006, we will apply the statute in effect at that time.

2

Funderburgh sets forth his appellate argument as solely a challenge to the inappropriateness of his sentence. 

However, interspersed in his inappropriate sentencing argument, Funderburgh challenges the three 

aggravators found by the trial court as well as the trial court’s decision to reject his proffered mitigators. 

Because a challenge to aggravating and mitigating factors is to be reviewed under a different standard of 

review than an inappropriate sentencing challenge, we will review these arguments separately.
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Facts

[3] Between September 2005 and September 2006, Funderburgh, who was then 

thirty-four years old, engaged in sexual intercourse with M.M., who was the 

eight-year-old daughter of Funderburgh’s live-in girlfriend. 

[4] Several years later, once M.M. had moved in with her grandmother, M.M. 

reported what Funderburgh had done to her. Thereafter, on November 5, 2013, 

the Marion Police Department questioned Funderburgh regarding the child 

molesting allegations against him. Initially, Funderburgh denied all the 

allegations. He told police that he “wanted to take a polygraph to clear himself 

of the allegations.” (App. 153).

[5] Three days later, on November 8, 2013, Funderburgh returned to the police 

station for the scheduled polygraph. Funderburgh then signed a “Polygraph 

Waiver Form” and an “Agreement of Stipulation of Polygraph Examination,” 

in which he agreed that the results of the polygraph could be used against him

in any action that would arise from charges filed against him. (App. 75, 78). 

The police videotaped Funderburgh as he was interviewed before the polygraph 

examination, during the polygraph examination, and after the examination. 

During the post-polygraph interview, Funderburgh stated that he thought of 

M.M. as his daughter. When officers asked if he could explain why the 

polygraph showed that he was being deceptive about the question of whether 

his bare penis had touched M.M.’s bare vagina, Funderburgh first stated that, 

when he lived with M.M., her mother, and her siblings, they used to walk 

naked around the house and that his penis might have touched M.M.’s vagina 
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when he walked by her. He later stated that there had been only one contact 

that had occurred, and he blamed it on M.M. Specifically, Funderburgh stated 

that when he was sitting on the toilet having a bowel movement with an erect 

penis, and M.M. straddled his lap. He later stated that his penis became erect 

after M.M. sat on him.

[6] In 2014, the State charged Funderburgh with three counts of Class A felony 

child molesting. Specifically, Count 1 alleged that Funderburgh had engaged in 

sexual intercourse with M.M.; Count 2 alleged that Funderburgh had 

performed deviate sexual conduct on M.M.; and Count 3 alleged that 

Funderburgh had M.M. perform deviate sexual conduct on him. 

[7] Prior to trial, Funderburgh’s counsel filed a motion in limine, seeking to 

exclude evidence of the polygraph examination and results. The trial court held 

a hearing on Funderburgh’s motion, and the State introduced, as State’s Exhibit 

1, the DVD of Funderburgh’s November 8, 2014 interviews and polygraph 

examination.3 The trial court reviewed the videotape of Funderburgh’s prepolygraph interview, his polygraph examination, and his post-polygraph 

interview; determined that Funderburgh had knowingly waived his right to 

counsel prior to the polygraph examination; and denied Funderburgh’s limine 

motion.

 

3 The transcript of this limine hearing is not included in the record on appeal.
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[8] On January 26, 2016, the day of Funderburgh’s jury trial, Funderburgh entered 

an agreement to plead guilty to Count 1 in exchange for the dismissal of Counts 

2 and 3.4 The parties also agreed that sentencing would be open to the trial 

court’s discretion. The factual basis for Funderburgh’s offense was laid by 

Funderburgh’s admission to the facts alleged in the charging information for 

Count 1.

[9] At Funderburgh’s sentencing hearing, the State asked the trial court to take 

judicial notice of the State’s Exhibit 1 from the limine hearing, which was the 

DVD of Funderburgh’s November 8, 2014 interviews and polygraph 

examination. The trial court granted the State’s request. 

[10] The State also had M.M. present her victim impact statement. When making 

this statement, M.M. stated that Funderburgh “raped” her in the bathroom 

when she was eight years old. (Tr. 45). She further explained that 

Funderburgh had “sexual intercourse with [her] in the bathroom after everyone 

ha[d] gone to sleep.” (Tr. 46). M.M. further stated that Funderburgh had 

molested her “repeatedly” and explained that it was multiple times a week over 

 

4

It appears that the plea agreement was an oral, not a written plea agreement. We note that INDIANA CODE

§ 35-35-3-3(a) requires that a plea agreement on a felony charge be made “in writing” and “before the 

defendant enters a plea of guilty.” Recently, we explained that “‘[t]he purpose behind [INDIANA CODE § 35-

35-3-3] is to insure that a defendant does not base his guilty plea upon certain promises made by the 

prosecutor where the judge has in fact not accepted the [S]tate’s recommendation.’” Gil v. State, 988 N.E.2d 

1231, 1234 n.2 (Ind. Ct. App. 2013) (quoting Davis v. State, 418 N.E.2d 256, 260 (Ind. Ct. App. 1981)). 

However, we also explained that “failure to reduce an agreement to writing need not itself be deemed a 

sufficient ground for rejection” of a defendant’s guilty plea. Gil, 988 N.E.2d at 1234 n.2 (quoting Centers v. 

State, 501 N.E.2d 415, 417-18 (Ind. 1986)).
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multiple months. (Tr. 46). Additionally, M.M. stated that Funderburgh had 

forced her to watch “sex position guide videos” and to look at “porn 

magazines.” (Tr. 54). She further stated that she had been seeing a therapist 

for a few years and that Funderburgh’s actions still affected her.

[11] M.M.’s grandmother (“Grandmother”) also presented a statement during the 

sentencing hearing. Apparently, around 2006 or 2007, the Department of Child 

Services had removed M.M. from her mother’s home and placed her in foster 

care, where she remained for approximately two years. Thereafter, M.M.

moved in with her grandparents. Grandmother stated that when M.M. moved 

in with her, she “knew something unusual had happened to M.[M.]” and that, 

at that time, M.M. would crawl into a small space, get into a fetal position, 

cover herself with a blanket, and “sob[.]” (Tr. 59). Grandmother further stated 

that M.M. had been in therapy for almost four years before she was able to 

reveal that Funderburgh had molested her. Additionally, Grandmother stated 

that Funderburgh had stolen M.M.’s “childhood and innocence” and caused 

her to feel shame and have low self-worth. (Tr. 60).

[12] When Funderburgh made a statement, he “apologize[d] for what had happened

with all of this” and then stated that he wanted to have a jury trial instead of a 

sentencing hearing. (Tr. 73). The trial court told Funderburgh that he had his 

chance to have a jury trial and had decided to plead guilty and that the court 

would proceed with sentencing. 
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[13] The State argued that, taking into consideration Funderburgh’s polygraph 

examination and interviews, his statements made to the probation officer as 

part of the presentence investigation report (“PSI”), and M.M.’s sentencing 

statements, it was clear that Funderburgh blamed M.M. for the molestation. 

The State requested that the trial court impose a fifty-year sentence.

[14] During the sentencing hearing, Funderburgh’s counsel asked the trial court to 

consider certain mitigating factors, including his difficult childhood of physical 

and emotional abuse. His counsel also referenced the DVD from 

Funderburgh’s November 2013 police interview and stated that the video 

showed that Funderburgh was “embarrass[ed]” by “what had happened 

here[.]” (Tr. 76). Additionally, Funderburgh’s counsel argued that 

Funderburgh was not in a position of trust with M.M. Counsel acknowledged 

that Funderburgh had a relationship with M.M.’s mother and lived with her, 

but he argued that there was no position of trust because Funderburgh had 

never married M.M.’s mother. Funderburgh’s counsel requested that the trial 

court impose a thirty-year sentence with ten years suspended to probation.

[15] When sentencing Funderburgh, the trial court acknowledged that Funderburgh 

had pled guilty and noted that he had received “some consideration” for it 

because the State had dismissed two other Class A felony charges. (Tr. 80). 

The trial court noted that Funderburgh had five misdemeanor convictions. 

Specifically, in June 2000, Funderburgh was convicted in Wisconsin of criminal 

damage to property/use of a dangerous weapon and disorderly conduct. In 

January 2001, he was convicted in Wisconsin of battery (domestic abuse 
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related) and two counts of disorderly conduct. The trial court found the 

following aggravating circumstances: (1) Funderburgh’s criminal history, 

which the trial court found to be “a moderate aggravating factor[;]” (2) the age 

of the victim, which the trial court found to be “a moderate aggravating factor”

because M.M. was “an eight year old little girl[;]” and (3) Funderburgh’s 

position of “care, custody[,] and control” of the victim, which the trial court 

found to be “a very strong aggravating factor[.]” (Tr. 80-81). The trial court 

also noted that Funderburgh “minimize[d] his own responsibility[] and 

blame[d] the victim for initiating his victimization of her[,]” and it found 

Funderburgh’s “statements and attitude on this point to be incredible and 

disturbing.” (App. 181). 

[16] The trial court imposed a fifty (50) year sentence for Funderburgh’s Class A 

child molesting conviction and ordered it be served in the Department of 

Correction. Funderburgh now appeals. 

Decision

[17] On appeal, Funderburgh contends that: (1) the trial court erred in it 

consideration of aggravating and mitigating circumstances; and (2) his sentence 

is inappropriate. We will review each argument in turn.

1. Abuse of Discretion

[18] Funderburgh suggests that the trial court erred by finding the three aggravating 

circumstances and by rejecting his proffered mitigating circumstances.
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[19] Sentencing decisions rest within the sound discretion of the trial court. 

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 

218 (Ind. 2007). So long as the sentence is within the statutory range, it is 

subject to review only for an abuse of discretion. Id. An abuse of discretion 

will be found where the decision is clearly against the logic and effect of the 

facts and circumstances before the court or the reasonable, probable, and actual 

deductions to be drawn therefrom. Id. A trial court may abuse its discretion in 

a number of ways, including: (1) failing to enter a sentencing statement at all; 

(2) entering a sentencing statement that includes aggravating and mitigating 

factors that are unsupported by the record; (3) entering a sentencing statement 

that omits reasons that are clearly supported by the record; or (4) entering a 

sentencing statement that includes reasons that are improper as a matter of law. 

Id. at 490–91. 

[20] Funderburgh suggests that the trial court’s use of his criminal history as an 

aggravating circumstance was erroneous because he had only misdemeanor 

convictions and was not on probation at the time of the current offense. 

Funderburgh’s challenge to the trial court’s aggravator is nothing more than a 

request to review the weight that the trial court applied to this aggravating 

factor, which we will not do. See Anglemyer, 868 N.E.2d at 491 (explaining that 

relative weight given to aggravating and mitigating factors is not subject to 

review). Thus, we conclude that the trial court did not abuse its discretion by 

considering Funderburgh’s criminal history as an aggravating factor.
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[21] Next, Funderburgh’s challenges the trial court’s determination that the victim’s 

age was an aggravating circumstance. Specifically, he contends that such an 

aggravator was improper because the age of the victim is an element of his 

offense. 

[22] Generally, where the age of the victim is a material element of the crime, the 

age of the victim may not be used as an aggravating circumstance. Kien v. State,

782 N.E.2d 398, 414 (Ind. Ct. App. 2003) (citing Stewart v. State, 531 N.E.2d 

1146, 1150 (Ind. 1988)), reh’g denied, trans. denied. “However, the trial court 

may properly consider the particularized circumstances of the material elements 

of the crime” to be an aggravating factor. Id. (citing Stewart, 531 N.E.2d at 

1150). For example, a trial court may properly consider as aggravating the age 

of the victim when the trial court considers that the victim was of a “tender 

age.” Id. (citing Stewart, 531 N.E.2d at 1150 and Buchanan v. State, 767 N.E.2d 

967, 971 (Ind. 2002)). Stated differently, we have held that a trial court may 

properly consider the victim’s age as an aggravating factor where “the youth of 

the victim is extreme.” Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 

2009).

[23] In Reyes, the defendant was convicted of Class A felony child molesting after he 

had sexual intercourse with a nine year old. Id. at 1126. At sentencing, the trial 

court found the victim’s age to be an aggravating circumstance. Id. at 1128. On 

appeal, we rejected Reyes’ contention “that the trial court [had] abused its 

discretion in concluding that the molestation of a nine year old [was] extreme.” 

Id. We explained that “[a]lthough the trial judge could have been more specific 
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in tying the victim’s age to the particular nature and circumstances of the 

offenses, [the court] did refer to the victim’s age in conjunction with the 

molestation that occurred over a period of years.” Id. Thus, we held that the 

trial court had not abused its discretion by considering the victim’s age as an 

aggravating circumstance. Id.

[24] Here, the trial court noted that M.M. was under the statutory age required for 

Funderburgh’s child molesting conviction. When sentencing Funderburgh, the 

trial court also commented that M.M. was “an eight year old little girl[,]” and it 

stated that it was taking into consideration M.M.’s victim impact statement and 

the effects that Funderburgh’s crime had on M.M. (Tr. 81). As a result, it is 

clear that the trial court’s finding concerning M.M.’s age was linked to the 

particular circumstances of this case, namely the profound impact it had on her

young life. Therefore, the trial court did not abuse its discretion by identifying 

M.M.’s age as an aggravating circumstance. See, e.g., Reyes, 909 N.E.2d at 1128

(finding no error in the trial court’s use of the nine-year-old victim’s age as an 

aggravating circumstance).

[25] Lastly, we turn to Funderburgh’s contention that the position of trust and care 

aggravator is “not supported by the record.” (Funderburgh’s Br. 15). In regard 

to this aggravating circumstance, we have explained as follows:

The position of trust aggravator is frequently cited by sentencing 

courts where an adult has committed an offense against a minor 

and there is at least an inference of the adult’s authority over the 

minor. Moreover, this aggravator applies in cases where the 

defendant has a more than casual relationship with the victim 
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and has abused the trust resulting from that relationship. This is 

usually the case where the defendant is the victim’s mother, 

father or stepparent . . . . Generally, cohabitation arrangements 

of nearly any character between adults do in fact, and should, 

establish a position of trust between the adults and minors living 

or staying together.

Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007).

[26] Here, Funderburgh was the boyfriend of M.M.’s mother and living in the same 

house with M.M.’s family. The State argues that “the combination of 

cohabitation, the intimate relationship between Funderburgh and M.M.’s 

mother, and his statement that he considered M.M. as his daughter shows that 

he was in a position of care, custody, or control over M.M.” (State’s Br. 15-16). 

We agree. Indeed, the trial court specifically noted that “the evidence 

support[ed] [the position of trust aggravator] based upon the testimony . . . 

heard here as well as the video of the defendant’s own statements.” (Tr. 80-81). 

Accordingly, the trial court did not abuse its discretion by considering this 

aggravating circumstance. See, e.g., Hines v. State, 856 N.E.2d 1275, 1281 (Ind. 

Ct. App. 2006) (finding no abuse of discretion where the trial court considered 

the defendant’s position of trust with the victim to be an aggravating 

circumstance), trans. denied. 

[27] As with Funderburgh’s challenges to his aggravators, we also find without merit 

his challenge to the trial court’s rejection of his proffered mitigating 

circumstances. Funderburgh contends that the trial court should have 
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considered his difficult childhood and psychological conditions of depression, 

bipolar disorder, and anger control as mitigating circumstances. 

[28] A trial court is not obligated to accept a defendant’s claim as to what constitutes 

a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A 

claim that the trial court failed to find a mitigating circumstance requires the 

defendant to establish that the mitigating evidence is both significant and clearly 

supported by the record. Anglemyer, 868 N.E.2d at 493.

[29] As for Funderburgh’s proposed difficult childhood mitigating factor, he has not

shown that the trial court abused its discretion by refusing to assign mitigating 

weight to this factor where he “never established why his past victimization led 

to his current behavior.” Hines, 856 N.E.2d at 1283 (finding no abuse of 

discretion where the trial court’s rejected the defendant’s childhood history 

mitigator). See also Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000) 

(explaining that evidence of a “difficult childhood warrants little, if any, 

mitigating weight”), reh’g denied, cert. denied; Loveless v. State, 642 N.E.2d 974, 

976-77 (Ind. 1994) (trial court was not obligated to consider the defendant’s 

“overwhelmingly difficult” childhood as a mitigating circumstance). 

[30] Similarly, Funderburgh has failed to show that the trial court abused its 

discretion by finding that his psychological conditions were not entitled to 

mitigating weight where Funderburgh failed to show a nexus between any such 

conditions and his crime. See Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct. 

App. 2004) (explaining that “in order for a mental history to provide a basis for 
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establishing a mitigating factor, there must be a nexus between the defendant’s 

mental health and the crime in question”). Accordingly, the trial court did not 

abuse its discretion by refusing to assign mitigating weight to his proposed 

mitigating factors.

2. Inappropriate Sentence

[31] Funderburgh contends that his fifty-year year sentence for his Class A child 

molesting conviction is inappropriate. He requests this Court to reduce his 

sentence to the advisory term of thirty years. 

[32] We may revise a sentence if it is inappropriate in light of the nature of the 

offense and the character of the offender. Ind. Appellate Rule 7(B). The 

defendant has the burden of persuading us that his sentence is inappropriate. 

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a 

Rule 7(B) review “should be to attempt to leaven the outliers, and identify some 

guiding principles for trial courts and those charged with improvement of the 

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” 

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is 

inappropriate ultimately turns on “the culpability of the defendant, the severity 

of the crime, the damage done to others, and a myriad of other factors that 

come to light in a given case.” Id. at 1224. 

[33] When determining whether a sentence is inappropriate, we acknowledge that 

the advisory sentence “is the starting point the Legislature has selected as an 

appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081. 
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Here, Funderburgh pled guilty to Class A felony child molesting. A Class A 

felony has a range of twenty (20) to fifty (50) years with an advisory sentence of 

thirty (30) years. I.C. § 35-50-2-4. The trial court imposed the maximum term 

of fifty (50) years for Funderburgh’s Class A felony conviction. 

[34] Funderburgh focuses much of his appellate argument on a discussion of other 

inappropriate sentencing cases, trying to compare them to and distinguish them 

from the facts and sentence in his case. However, we have explained that “[i]n 

analyzing such [inappropriate sentencing] claims, we [should] ‘“concentrate 

less on comparing the facts of [the case at issue] to others, whether real or 

hypothetical, and more on focusing on the nature, extent, and depravity of the 

offense for which the defendant is being sentenced, and what it reveals about 

the defendant’s character.”’” Guzman v. State, 985 N.E.2d 1125, 1134 (Ind. Ct. 

App. 2013) (quoting Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) 

(quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied), 

trans. denied)). 

[35] Turning to the nature of Funderburgh’s Class A felony child molesting offense, 

we note that Funderburgh forced the eight-year-old daughter of his girlfriend to 

engage in sexual intercourse with him. According to the victim’s statement

during the sentencing hearing, Funderburgh had “sexual intercourse with [her] 

in the bathroom after everyone ha[d] gone to sleep[,]” and he did so 

“repeatedly” over multiple months. (Tr. 46). As the trial court noted, 

Funderburgh’s act of having sex with M.M. was all the more heinous because 

he was in a position of trust with her.
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[36] Turning to Funderburgh’s character, we acknowledge that Funderburgh pled 

guilty; however, he did so on the day of trial and in exchange for the dismissal 

of two other Class A felony charges. See Wells v. State, 836 N.E.2d 475, 479 

(Ind. Ct. App. 2005) (explaining that “a guilty plea does not rise to the level of 

significant mitigation where the defendant has received a substantial benefit 

from the plea or where the evidence against him is such that the decision to 

plead guilty is merely a pragmatic one”), trans. denied. We also note that 

Funderburgh has a criminal history consisting of five misdemeanor convictions. 

The PSI reveals that, in June 2000, he was placed on probation for one year 

from his use of a dangerous weapon and disorderly conduct convictions and 

that, within that probationary period, he committed three additional offenses 

(battery and two counts of disorderly conduct) in November 2000 and was 

sentenced for them in January 2001. Funderburgh attempts to minimize his

criminal history by arguing that he did not have any prior felony convictions

and that his last conviction was somewhat remote in time. We find, however, 

that his prior criminal history reflects poorly on his character. Additionally, as 

the trial court noted, Funderburgh “minimize[d] his own responsibility[] and 

blame[d] the victim for initiating his victimization of her.” (App. 181). This 

too reflects poorly on his character. 
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[37] Funderburgh has not persuaded us that his fifty-year sentence for his Class A 

felony child molesting conviction is inappropriate. Therefore, we affirm the 

trial court’s sentence.5

[38] Affirmed.

Baker, J., and Mathias, J., concur. 

 

5 To the extent that Funderburgh challenges the results of the probation department’s risk assessment 

instruments, we note that the “scores on a probation department’s risk assessment instrument ‘are not intended to 

serve as aggravating or mitigating circumstances nor to determine the gross length of sentence[.]’” Bratcher v. State, 

999 N.E.2d 864, 872 (Ind. Ct. App. 2013) (quoting Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010)), trans. 

denied. “Instead, these ‘offender assessment instruments are appropriate supplemental tools for judicial 

consideration at sentencing’ and can be used by the trial court ‘in formulating the manner in which a sentence is to 

be served.’” Id. (quoting Malenchik, 928 N.E.2d at 575).